Opposition Leader takes the judicial-independence battle onto economic territory, warning that doubts about Sri Lanka’s courts could discourage the foreign investment the country desperately needs.
Sajith Premadasa has taken the argument over Sri Lanka’s judiciary somewhere the Government may find considerably harder to dismiss – into the economy. The Opposition Leader is warning that perceptions of political interference, court packing or manipulation of judicial processes can damage international confidence in Sri Lanka and ultimately discourage foreign direct investment.
His argument emerges from the continuing controversy surrounding the proposed 22nd Amendment and wider concerns raised over judicial independence. Premadasa has also highlighted the recent visit to Sri Lanka by Commonwealth Lawyers Association President Steven Thiru and the inability to secure meetings with some senior Government legal officials, although Thiru did meet the Opposition Leader.
The Government and its supporters are entitled to challenge the allegations and the significance attached to organisations or individuals entering the debate. But concentrating entirely upon the messenger risks missing the much more interesting proposition Premadasa has placed on the table: judicial independence is not merely a constitutional or human-rights issue; it is part of a country’s economic infrastructure.
A company considering investing US$100 million in Sri Lanka must calculate risks extending far beyond wages, electricity costs, taxation and concessions. It must consider what happens if a local partner breaches an agreement, if a regulator makes a decision it believes unlawful, if the Government changes the rules or if valuable property and contractual rights become the subject of litigation.
Eventually those questions lead to the same place: the courts. The investor does not require judges who will rule in its favour; it requires confidence that judges will determine disputes independently according to law, regardless of the identity or political influence of the parties appearing before them.
That is why an independent judiciary can be as important to investment as a functioning port, reliable electricity supply or predictable taxation. Physical infrastructure enables investors to operate, while credible legal infrastructure gives them confidence that the rules governing that operation will survive political change.
Sri Lanka is particularly exposed because the country needs foreign capital. Domestic savings alone cannot generate all the investment required for sustained economic expansion, and Sri Lanka needs international businesses prepared to commit capital for ten, twenty or thirty years rather than investors interested principally in short-term financial returns.
Premadasa’s argument therefore deserves examination on its merits rather than rejection because it comes from the Opposition. But it also creates an obligation for the SJB, because a party presenting judicial independence as part of its economic proposition must explain what institutional safeguards it would introduce if it returns to government.
Sri Lankan administrations of different political colours have faced accusations involving judicial appointments, political influence and interference with institutions. An Opposition promising something different should therefore explain how judges would be appointed, how seniority should operate, how constitutional benches should be constituted and what safeguards would prevent political influence regardless of which party controls the Executive.
The Government, meanwhile, possesses a much more convincing answer to allegations about judicial independence than attacking those making them: make the processes surrounding the judiciary as transparent and defensible as possible. Confidence in courts is not created because politicians repeatedly assure the public that judges are independent; it is created when the institutions surrounding those judges are sufficiently credible that such assurances become unnecessary.
Sri Lanka spends considerable effort persuading foreign investors that the country is open for business. Sajith Premadasa has now added an uncomfortable but legitimate question to that sales pitch: before asking an investor to trust Sri Lanka with millions of dollars, can Sri Lanka demonstrate that the investor can also trust it with the law?
Be that as it may, foreign capital can accommodate political disagreement, elections and even difficult economic conditions. What long-term capital dislikes intensely is uncertainty about whether the rules – and the institutions enforcing them – will remain dependable when they matter most.
